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Copyright Office anti-circumvention study failed, fight back by July 30th

Submitted by Donald on July 28, 2017 - 10:23am

UPDATE: Thank you to everyone who voiced their support of our (now submitted) renewal submissions.

We wrote previously about the U.S. Copyright Office undertaking a study of the Digital Millenium Copyright Act's (DMCA) anti-circumvention provisions and the exemptions process. These provisions present legal penalties for anyone looking to take back their rights to works encumbered by Digital Restrictions Management (DRM). As we explained several years back, the current system is completely broken:

Every three years, supporters of user rights are forced to go through a Kafkaesque process fighting for exemptions from the anti-circumvention provisions of the DMCA... In short, under the DMCA's rules, everything not permitted is forbidden. Unless we expend time and resources to protect and expand exemptions, users could be threatened with legal consequences for circumventing the DRM on their own devices and software and could face criminal penalties for sharing tools that allow others to do the same. Exemptions don't fix the harm brought about by the DMCA's anti-circumvention provisions, but they're the only crumbs Congress deigned to throw us when they tossed out our rights as users.

With your help, we were able to make a push for ending this intrinsically flawed system. But the Copyright Office recently published its study (PDF), and the results are downright sad. Instead of using this study as an opportunity to make things right, the Copyright Office chose instead to try and polish up the status quo. And with the study out of the way, they are diving right back into another round of exemptions with few substantive changes.

We want to explain the results of that study, and then ask once again for your help in this seemingly unending fight. Most of the recommendations in the study are aimed at the U.S. Congress. The anti-circumvention rules and exemptions process is mandated by law, so many of the problems it creates will require a legislative repeal. There are some bits, however, that the Copyright Office believes are within its discretion. Keep that in mind as we discuss the good and (mostly) bad contained within.

Permanent exemptions

The study suggests creating additional categories of permanent exemptions. One of the most frustrating aspects of the exemptions process is the need to re-litigate previously won exemptions every three years. If an exemption isn't submitted and supported again during each triennial rulemaking period, it will lapse, and users who previously relied upon that exemption will be left out in the cold. The Free Software Foundation advocated for granting permanent exemptions for all uses, but the Copyright Office is more interested in half measures. These are the additional categories they recommended:

Assistive technologies for literary works. While allowing users to avoid DRM in order to be able to actually read the works they buy or receive is certainly a step in the right direction, why stop there? Users don't just need assistive technology when it comes to books; they need it for films, video games, and other types of works.

Unlocking cell phones and tablets. We wrote about the disaster that previously occurred when the Copyright Office failed to renew the exemption for carrier unlocking cell phones. Congress had to step in to recover the right, and clearly the Copyright Office doesn't want to repeat that particular mistake again. At the time of the bill, even in restoring unlocking for cell phones, tablets were left out in the dark. The FSF called for allowing unlocking of all devices, including tablets. So it is good to see that some progress has been made on this front.

Repair and maintenance, but not modification. One of the nastiest battles from the last round of exemptions focused on the right to repair. Automotive and tractor companies lined up to restrict the ability of their customers to access the code lying beneath their engines. The DRM on vehicles could hide all sorts of nasty things, such as software used to defeat emissions tests. Here, the Copyright Office recommended a permanent exemption for repair and maintenance, which goes beyond just vehicles, but stops short of permitting modifications. Being able to modify the code you run on your own devices is a key component of software freedom, and modification of vehicles also has a long history. Failing to extend the permanent exemption for the right to modify is a major failure.

Sharing tools and helping your friends, family, and colleagues

One area we pushed particularly hard on was the right to share tools with your community. Most people can't fix their devices and software on their own, so they need tools or even help from their friends. Even when an exemption is granted, it may be of no practical value to the average user, as they do not have the time or expertise to perform repairs on their own.

The Copyright Office starts off by commenting that creating circumvention tools for your own use may not be prohibited, so no change is in needed in that regard. Of course, that fixes nothing for most users. The complaint is that they cannot take advantage of an exemption without proper tools, but that issue obviously doesn't apply to those who can make their own.

The Copyright Office then argues that sharing tools should remain illegal. This is the biggest single betrayal in the whole report. It's like saying it's legal to modify your kitchen table, but it's illegal to buy, sell, or borrow hammers or nails. Without being able to share or receive tools that enable you to avoid DRM, you most likely won't be able to control your own computing in any real sense.

Finally, they turned to third-party assistance. They think that they've found a solution, but it's the same broken system we have been fighting against. The study suggests allowing third parties to help remove DRM via granting particular exemptions. For many users, it's often easier to have a friend or service avoid the DRM on works rather than trying to do so on your own. The Copyright Office sees the value in users being able to turn to a third-party for assistance in unlocking DRM-shackled works, but wants to control who can do the unlocking and when they can do it. What they suggest is that Congress should allow them to grant exemptions for third-party assistance, expanding their mess of a system to a new domain. Doubling the process for adding exemptions for assistance fixes nothing.

The broken process itself

As part of their study, the Copyright Office took a look at the process itself, but only decided to try to plug a few holes in the sinking ship, rather than looking for a lifeboat.

Presumption of renewal. Rather than just making all exemptions permanent, the Copyright Office wants to shift the burden of proof when it comes to renewal. That would be a minor improvement, if it weren't for the massive imbalance of power between those who are pushing for freedom and the mega corporations and associations who want to extend their domination. Shifting the presumption here is like putting your pinky on a balance that has an elephant sitting on the other side.

Nonfree software still required to submit comments. The Copyright Office previously refused to accept our comments at all unless they were submitted via the regulations.gov interface, which requires nonfree Javascript. Given that they quoted us in the study, it looks like we got through this time. But the Copyright Office still lists regulations.gov as the only way to submit comments without having to ask for special permission.

Finally, we come to a change that the Copyright Office believes it can implement without congressional involvement: simplifying the paperwork. Towards that end, the Copyright Office announced the next round of the triennial exemptions process, this time kicking off with a separate phase looking solely at renewals. This is where our work begins anew.

What we do next

We're very much in a similar place as we were before the study was launched. If Congress follows through on implementing the recommended changes, we will still have anti-circumvention rules threatening users with legal penalties. We will still have a broken exemptions process that wastes our time and resources should we choose to participate, and further diminishes our rights if we don't participate. When Congress asked the Copyright Office to conduct this study, they were providing a great opportunity to make real positive change. But the Copyright Office chose not to take advantage, offering milquetoast recommendations and spit-shine fixes. So the fight will continue.

This is where you come in. That accelerated process for renewal? It's already begun. We have until July 31st to renew all the exemptions we won in the last round. And we're going to fight for each and every one of them. Will you lend your voice in support of our comment to renew all exemptions?

Here's what you can do to help:

Support our renewal submission by July 30th by emailing us at licensing@fsf.org. We just need your name and state (or country if you are outside the U.S.) to add your voice to the chorus.